Hughey v Brown Bros. Harriman & Co. 2024 NY Slip Op 33430(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 151872/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151872/2023 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 09/30/2024
SUPREME COURT OF THE STA TE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------X INDEX NO. 151872/2023 LISA SMITH HUGHEY, MOTION DATE 06/13/2024 Plaintiff, MOTION SEQ. NO. 008 - V-
BROWN BROTHERS HARRIMAN & CO., 140 BROADWAY, LLC,JLL MANAGEMENT CORP., HARVARD PROTECTION DECISION + ORDER ON SERVICES, SCHINDLER ELEVATOR CORPORATION MOTION
Defendant. ---------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 008) 194, 195, 196, 197, 198,199,200,201,202,203,204,205,206,207,208,209,217,218,219,220,221,222,229,230,231, 232 were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, Defendants 140 BW, LLC ("140 BW") and Jones Lang
Lasalle Americas, Inc.' s ("JLL") (collectively "Movants") motion seeking summary judgment
dismissing Plaintiff Lisa Smith Hughey's ("Plaintiff') Complaint and all crossclaims, and
summary judgment granting their request for contractual indemnity against Defendant Schindler
Elevator Corporation ("Schindler") is denied.
I. Background
This is an action for personal injuries arising from an allegedly defective elevator located
at 140 Broadway, New York, New York (the "Premises") (see generally NYSCEF Doc. 1).
Plaintiff allegedly fell on December 14, 2022, when the elevator she was riding suddenly dropped
from the 34th to the 27th floor (id.). The Premises are owned and managed by the 140 BW and
JLL. Schindler was the elevator service provider prior to and on the date of Plaintiffs accident.
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 1 of 4 Motion No. 008
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The Movants seek summary judgment dismissing the complaint and all crossclaims against
them, as well as an order granting their request for contractual indemnification against Schindler.
The Movants concede they owed Plaintiff a duty to ensure their elevators were maintained in a
reasonably safe manner. However, Movants argue that their expert, Lawrence Marley, P.E.,
examined the accident footage, the inspection records, and conducted his own inspection, and
determined the elevator at issue was free of defects both before and after Plaintiffs accident. The
Movants argue they are entitled to contractual indemnification because there is no evidence of any
active negligence on their part and due to the plain language of an alleged indemnification
agreement executed between Movants and Schindler.
Plaintiff opposes. Plaintiff argues that her own expert, James Pugh, PHD, P.E. opines that
the elevator was chronically defective. Plaintiff argues that Movants had notice of the elevator's
defects because the Movants were notified on numerous occasions of the ongoing elevator issues
in the building. Plaintiff produced e-mails of complaints about the elevator to the Movants.
Plaintiff also points to deposition testimony from JLL where the JLL representative, Michael
McDermott, admitted that JLL would reach out to Schindler regarding elevator issues, and the
contract executed between Movants and Schindler stated that Movants would inspect the quality
of elevator maintenance and retained the right to make its own inspections and tests of the elevators
whenever necessary. Schindler also opposes and argues that it is only responsible for
indemnification to the extent it was negligent. However, Schindler argues that Movants' expert
swears under oath that there were no defects with the elevator and therefore Schindler could not
have been negligent. The Movants have not submitted any reply.
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II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Viewing the facts in the light most favorable to the non-movants, here Plaintiff and
Schindler, the Court finds there are triable issues of fact which preclude summary judgment. Here,
the conflicting expert affidavits as to whether the elevator was chronically defective or free from
defects creates a triable issue of fact (see Lowman v Consolidated Edison Co. of New York, Inc.,
220 AD3d 510, 511 [1st Dept 2023]; Mable v 384 East Associates, LLC, 175 AD3d 1127, 1128
[1st Dept 2019] [conflicting expert affidavits regarding potential causes of elevator malfunction
precluded summary judgment]).
Moreover, as the contract between Movants and Schindler placed the onus on Movants to
inspect the quality of Schindler's work and reserved Movants' right to conduct its inspections and
tests of the elevators creates an issue of fact as to whether Movants were affirmatively negligent
in maintaining the elevators (see generally Malloy v Friedland, 77 AD3d 583 [1st Dept 2010]
[property owner may be held liable for condition on premises where it has a contractual right to
inspect and make needed repairs]). Indeed, there is testimony that Movants hired a third-party
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 3 of 4 Motion No. 008
[* 3] 3 of 4 INDEX NO. 151872/2023 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 09/30/2024
elevator consultant named DTM who reviewed maintenance records to ensure Schindler was
properly maintaining the elevators (NYSCEF Doc. 204 at 28:9-18).
Finally, there is an issue of fact as to notice as Plaintiffs have produced numerous e-mails ,
to Movants complaining about malfunctions on the elevator where Plaintiff was injured as well as
other elevators in the building (see NYSCEF Doc. 220). Because there are issues of fact as to
Movants' own negligence, the Court denies as premature their motion for summary judgment on
their contractual indemnification claim against Schindler (Lowman v Consolidated Edison Co. of
New York, Inc., 220 AD3d 510 [1st Dept 2023]; Spielmann v 170 Broadway NYC LP, 187 AD3d
492 [1st Dept 2020]).
Accordingly, it is hereby,
ORDERED that Defendants 140 BW, LLC and Jones Lang Lasalle Americas, Inc. ' s
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Hughey v Brown Bros. Harriman & Co. 2024 NY Slip Op 33430(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 151872/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151872/2023 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 09/30/2024
SUPREME COURT OF THE STA TE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------X INDEX NO. 151872/2023 LISA SMITH HUGHEY, MOTION DATE 06/13/2024 Plaintiff, MOTION SEQ. NO. 008 - V-
BROWN BROTHERS HARRIMAN & CO., 140 BROADWAY, LLC,JLL MANAGEMENT CORP., HARVARD PROTECTION DECISION + ORDER ON SERVICES, SCHINDLER ELEVATOR CORPORATION MOTION
Defendant. ---------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 008) 194, 195, 196, 197, 198,199,200,201,202,203,204,205,206,207,208,209,217,218,219,220,221,222,229,230,231, 232 were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, Defendants 140 BW, LLC ("140 BW") and Jones Lang
Lasalle Americas, Inc.' s ("JLL") (collectively "Movants") motion seeking summary judgment
dismissing Plaintiff Lisa Smith Hughey's ("Plaintiff') Complaint and all crossclaims, and
summary judgment granting their request for contractual indemnity against Defendant Schindler
Elevator Corporation ("Schindler") is denied.
I. Background
This is an action for personal injuries arising from an allegedly defective elevator located
at 140 Broadway, New York, New York (the "Premises") (see generally NYSCEF Doc. 1).
Plaintiff allegedly fell on December 14, 2022, when the elevator she was riding suddenly dropped
from the 34th to the 27th floor (id.). The Premises are owned and managed by the 140 BW and
JLL. Schindler was the elevator service provider prior to and on the date of Plaintiffs accident.
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 1 of 4 Motion No. 008
1 of 4 [* 1] INDEX NO. 151872/2023 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 09/30/2024
The Movants seek summary judgment dismissing the complaint and all crossclaims against
them, as well as an order granting their request for contractual indemnification against Schindler.
The Movants concede they owed Plaintiff a duty to ensure their elevators were maintained in a
reasonably safe manner. However, Movants argue that their expert, Lawrence Marley, P.E.,
examined the accident footage, the inspection records, and conducted his own inspection, and
determined the elevator at issue was free of defects both before and after Plaintiffs accident. The
Movants argue they are entitled to contractual indemnification because there is no evidence of any
active negligence on their part and due to the plain language of an alleged indemnification
agreement executed between Movants and Schindler.
Plaintiff opposes. Plaintiff argues that her own expert, James Pugh, PHD, P.E. opines that
the elevator was chronically defective. Plaintiff argues that Movants had notice of the elevator's
defects because the Movants were notified on numerous occasions of the ongoing elevator issues
in the building. Plaintiff produced e-mails of complaints about the elevator to the Movants.
Plaintiff also points to deposition testimony from JLL where the JLL representative, Michael
McDermott, admitted that JLL would reach out to Schindler regarding elevator issues, and the
contract executed between Movants and Schindler stated that Movants would inspect the quality
of elevator maintenance and retained the right to make its own inspections and tests of the elevators
whenever necessary. Schindler also opposes and argues that it is only responsible for
indemnification to the extent it was negligent. However, Schindler argues that Movants' expert
swears under oath that there were no defects with the elevator and therefore Schindler could not
have been negligent. The Movants have not submitted any reply.
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 2 of 4 Motion No. 008
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II. Discussion
"Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Viewing the facts in the light most favorable to the non-movants, here Plaintiff and
Schindler, the Court finds there are triable issues of fact which preclude summary judgment. Here,
the conflicting expert affidavits as to whether the elevator was chronically defective or free from
defects creates a triable issue of fact (see Lowman v Consolidated Edison Co. of New York, Inc.,
220 AD3d 510, 511 [1st Dept 2023]; Mable v 384 East Associates, LLC, 175 AD3d 1127, 1128
[1st Dept 2019] [conflicting expert affidavits regarding potential causes of elevator malfunction
precluded summary judgment]).
Moreover, as the contract between Movants and Schindler placed the onus on Movants to
inspect the quality of Schindler's work and reserved Movants' right to conduct its inspections and
tests of the elevators creates an issue of fact as to whether Movants were affirmatively negligent
in maintaining the elevators (see generally Malloy v Friedland, 77 AD3d 583 [1st Dept 2010]
[property owner may be held liable for condition on premises where it has a contractual right to
inspect and make needed repairs]). Indeed, there is testimony that Movants hired a third-party
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 3 of 4 Motion No. 008
[* 3] 3 of 4 INDEX NO. 151872/2023 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 09/30/2024
elevator consultant named DTM who reviewed maintenance records to ensure Schindler was
properly maintaining the elevators (NYSCEF Doc. 204 at 28:9-18).
Finally, there is an issue of fact as to notice as Plaintiffs have produced numerous e-mails ,
to Movants complaining about malfunctions on the elevator where Plaintiff was injured as well as
other elevators in the building (see NYSCEF Doc. 220). Because there are issues of fact as to
Movants' own negligence, the Court denies as premature their motion for summary judgment on
their contractual indemnification claim against Schindler (Lowman v Consolidated Edison Co. of
New York, Inc., 220 AD3d 510 [1st Dept 2023]; Spielmann v 170 Broadway NYC LP, 187 AD3d
492 [1st Dept 2020]).
Accordingly, it is hereby,
ORDERED that Defendants 140 BW, LLC and Jones Lang Lasalle Americas, Inc. ' s
motion seeking summary judgment dismissing Plaintiff Lisa Smith Hughey's Complaint and all
crossclaims asserted against them, and summary judgment granting their claim for contractual
indemnity against Defendant Schindler Elevator Corporation, is denied in its entirety; and it is
further
ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
9/30/2024 DATE HON. MRY V. ROSADO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
151872/2023 HUGHEY, LISA SMITH vs. BROWN BROTHERS HARRIMAN & CO. ET AL Page 4 of 4 Motion No. 008
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